What’s Next for Sentencing Reform?

ByTed Gest |May 12, 2016

Many criminal justice advocates from both sides of the political aisle have moved from a “tough on crime” to a “smart on crime” stance in recent years. Will the “tough” side block what some in Congress have called the best chance in a generation to enact federal sentencing reform?

The answer may be yes, and the main reason is the limited political calendar in an election year.

That’s why reformers wanted to approve a bill in a non-election year to begin with, but it took Senate negotiators much longer to agree on a measure capable of winning bipartisan support than they had hoped. A bipartisan measure was introduced last fall, and the Senate Judiciary Committee approved it, 15 to 5. Parallel action has proceeded in the House, although in a series of smaller bills instead of a comprehensive one.

To account for largely Republican opposition, key senators from both parties issued a new version in late April that eliminated some lessening of mandatory minimum penalties for firearms crimes and applied reforms to fewer current inmates, meaning the new law would apply mostly to future cases.

Still, Sen. David Perdue (R-GA) has denounced that revised version as a “criminal leniency” bill, citing a case mentioned by prosecutors of a federal crack violator who had his sentence reduced, and now has been arrested for stabbing his former girlfriend and her two daughters to death in Ohio.

The truth is that so many inmates are already released in the United States every year, and the repeat-criminality rate is so high, that there always will be some case to cite in opposition to any bill that would reduce sentences.

Still, the complaints from Perdue and a few other senators can’t be ignored.

Only a few full weeks of legislative action remain before the November election, when long summer and fall recesses are subtracted from the calendar.

Senate Majority Leader Mitch McConnell (R-KY) is reluctant to allocate what could be a week of debate on sentencing reform unless he is fairly sure it will pass the Senate and be taken up in the House. It takes 60 votes to halt the debate and force votes.

Right now, advocates are working hard behind the scenes to get those 60 votes, but it is not easy.

At least one major wrinkle is known by the Latin term “mens rea.” Some experts on both the conservative and liberal sides are insisting that the sentencing bill include a clause that would require prosecutors of white-collar crimes to prove that defendants knew they were violating the law.

Some critics have complained for years that the U.S. Justice Department has brought companies and individuals to court without such proof.

Insiders who are pushing sentencing reform complain that the “mens rea” debate has nothing to do with sentencing, yet could affect scores of criminal law provisions on the books and should not be rushed into an unrelated bill right now.

Yet especially in a shortened election year, many bills that can pass both houses of Congress these days are likely to be “catch-all” measures with diverse provisions. Even better are proposals that enjoy virtually unanimous support.

The current sentencing bill actually contains many more-popular provisions than the disputed changes in mandatory minimum sentences.

For example, it would require the massive federal Bureau of Prisons to make rehabilitation programs (now labeled with the euphemism “recidivism reduction programming”) available to all eligible prisoners with six years.

It would also mandate the Justice Department to carry out more projects, in conjunction with the federal court system, to help departing inmates successfully reenter society.

These and many other provisions have had little opposition, and several were recommended this year by an outside commission created by Congress and named for Charles Colson, a former federal inmate who was an advisor to the late President Richard Nixon.

Congress watchers say it may be a stretch to think that a wide-ranging anticrime measure can get through all the remaining hurdles in an election year. (There is no doubt that President Obama, who has endorsed its major provisions, would sign it.)

The “get-tough” crowd can point to some aspects of public opinion polling.

Last October, a Gallup survey reported that nearly six in 10 Americans said crime is an “extremely” or “very” serious problem, up from 55 percent in 2014 and only one percentage point below the high for this measure between 2000 and 2010. (The survey also reported a majority of Americans believing that crime was increasing, even though most government reports say it is not, at least nationally.)

Also, a survey taken by the National Opinion Research Center for many years found that as recently as 2014 nearly 63 percent of Americans believed that judges don’t sentence defendants harshly enough. That figure is way down from the 90 percent who believed that in surveys taken during the 1990s, but 63 percent is a landslide by some political calculations.

On the other hand, a poll issued this year by the Pew Charitable Trusts found that nearly 80 percent of Americans favor ending mandatory minimum sentences for drug offenses, and that more than 75 percent would eliminate all federal mandatory minimums. More than 80 percent would allow federal inmates to cut their prison time up to 30 percent by taking part in drug treatment or job training that has been shown to reduce recidivism.

One thing that probably won’t happen this year is for sentencing reform to wait until a possible lame-duck session after the November elections.

Some have speculated on the Supreme Court nomination of Merrick Garland that if Hillary Clinton were to win the presidential election and Democrats regain control of the Senate in the November vote, Republicans could accept Garland this fall as the best nominee they can get now.

Sponsors insist it is too chancy to bank on that for the sentencing bill. They contend that now is the time to get something approved by Congress even if it clearly is a watered-down version of what advocates wanted last year.

So watch for any action by Sen. McConnell or House Speaker Ryan in the coming weeks that would indicate they believe 2016 is the time for a first step in Washington to change criminal justice policy.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes comments from readers.

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